Baldwin v. Railway , 64 N.H. 596 ( 1888 )

"No railroad corporation shall eject any person from its cars for non-payment of fare, excepting at some passenger station." G. L., c. 163, s. 22. "Passenger station" may have different meanings in different statutes or in different connections. In this clause, it does not mean less than a stopping-place at which passenger tickets are ordinarily sold. If Waldron was ejected for non-payment of fare, his ejection was illegal.

Kilpatrick, a brakeman on the train that ran over Waldron, was not called as a witness by either party at the trial. On the cross-examination of Gonyea, the engineer of that train, the plaintiff's counsel, holding up a paper, asked, — "Do you know Kilpatrick's hand-writing?" The witness replied that he did not. The plaintiff's counsel then said, — "He gave his statement, and has since been discharged by the Grand Trunk Railway Company, hasn't he?" This was one way of informing the jury that the exhibited paper contained Kilpatrick's written statement, that it was adverse to the defendants, and that for this reason Kilpatrick had been discharged by them. The objection to this unsworn testimony was not avoided by the interrogative form of words. The substance was inadmissible. The effect of the testimony was intensified by the declaration that if the defendants objected to the so-called question, the plaintiff would waive it. This method of increasing the force of incompetent evidence is illustrated by the case supposed in Bullard v. B. M. Railroad, 64 N.H. 27, 35, and nothing need be added to the decision of that case. A judicial trial means a fair trial. The court has no discretionary power to compel a party to submit to a trial that is not fair. "Had the plaintiff's whole case been proved in the same way (by the unsworn testimony of his counsel), the error, although extended in fact over more ground, would not have been raised to a higher degree of illegality." The wrong was not rectified, the error was not acknowledged, the testimony was not withdrawn, and the plaintiff did not obtain explicit instructions from the court to the jury to disregard it.

The statement of plaintiff's counsel that a Texas jury had given a verdict for $10,000 in a similar case, and that another jury had given a verdict of eight or ten thousand dollars against these defendants in another case, was incompetent; and the error is not cured by the circumstance that this testimony was given in an altercation begun by the defendants' counsel. It is not improbable that the trial was so unfair on both sides that no verdict for either party could be sustained. The verdict is set aside, not because the party gaining it introduced incompetent evidence before his adversary did the same thing, nor because he introduced more incompetent evidence than his adversary, but because a material part of his evidence was inadmissible and prejudicial, and the trial was unfair and illegal.

Verdict set aside.

BLODGETT and BINGHAM, JJ., did not sit: the others concurred.